When can the 25th Amendment be used against a president?

A Democratic lawmaker who disapproves of President Donald Trump recently suggested the 25th Amendment to the Constitution could provide a solution.

"POTUS is showing signs of erratic behavior and mental instability that place the country in grave danger," Rep. Jackie Speier, D-Calif., tweeted on Aug. 15. "Time to invoke the 25th Amendment."

POTUS is showing signs of erratic behavior and mental instability that place the country in grave danger. Time to invoke the 25th Amendment.

— Jackie Speier (@RepSpeier) August 16, 2017

But not all Democrats see the 25th amendment as an appropriate way of responding to Trump.

Asked whether he thinks it should be used against Trump, Rep. Adam Schiff, D-Calif., said the amendment does not apply to present circumstances.

"I think what the authors of the (25th) Amendment principally had in mind was some kind of physical incapacitation or serious mental illness or a breakdown, an inability to function in office," Schiff said Aug. 20 on CNN’s State of the Union. "I think we're still far from concluding that that's the case, even though we find, many of us, his conduct anathema and there to be a serious problem here."

For this fact-check, we wanted to know if Schiff’s reading of the amendment’s origins is right. We’re not going to weigh in on whether Trump’s actions or mental state fit the criteria for presidential disability.  

The 25th Amendment, added to the Constitution in 1967, sought to resolve several thorny issues of presidential and vice presidential power. It creates a succession plan for when these top two positions go vacant. It also allows the president to declare himself unable to fulfill his duties and transfer power to the vice president.

However, we’re mostly interested in the 25th Amendment’s fourth and final section, which allows someone other than the president to make a finding of presidential disability.

Section four authorizes the vice president and a majority of the Cabinet, or another body as determined by lawmakers, to declare a president "unable to discharge the powers and duties of his office." Doing so would then elevate the vice president to the position of acting president.

The president can restore his powers by declaring that no inability exists. However, the same body that initially transferred power to the vice president can respond by essentially doubling down on their declaration that the president is unable to discharge his duties.

Then, if Congress, by a two-thirds vote in both the House and Senate, agrees that the president is unable to serve, the vice president continues to act as president. Such a move could permanently strip a president of his powers — hence, why some legal analysts refer to section four as the "involuntary removal mechanism."

The push for Congress to formalize a blueprint for handling presidential disability gained traction after President John F. Kennedy’s assassination on Nov. 22, 1963 (though lawmakers had first considered it much earlier in American history).

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"The assassination of President Kennedy ... produced a flurry of additional proposals dealing with the subject," John D. Feerick wrote in a 1995 article in the Wake Forest Law Review. "These proposals were influenced by the sense at that time that, if Kennedy had lived, the country would have had to deal with the problem of presidential inability in a most tragic setting."

As congressional hearings unfolded, little controversy surrounded the amendment’s first three sections, according to Feerick. Perhaps unsurprisingly, the real debate centered on when someone other than the president could declare him or her to be incapacitated.

The amendment’s principal author, Sen. Birch Bayh, D.-Ind., embraced an understanding that presidential inability would encompass both physical and mental inability, said Joel Goldstein, a law professor at St. Louis University, who’s closely studied the congressional record.

The formulation he adopted was put forth by Sen. Robert F. Kennedy, D-N.Y., who said presidential inability "involves physical or mental inability to make or communicate his decision regarding his capacity and physical or mental inability to exercise the powers and duties of his office."

Another important architect of the amendment, Rep. Richard Poff, R-Va., held a similar view, according to Goldstein.

Poff said section four not only applied when the president, due to accident or illness, was unconscious or otherwise unable to make or communicate a decision, but also when "the President, by reason of mental debility, is unable or unwilling to make any rational decision, including particularly the decision to stand aside."

On July 6, 1965, Congress formally proposed the 25th Amendment, and the necessary 38 states ratified it Feb. 10, 1967.

Legal experts told us the drafters used intentionally vague and open-ended language (i.e., a president who is "unable to discharge the powers and duties of his office.") because they recognized they couldn't predict every scenario in which a president could be deemed disabled.

But despite the definition’s fuzziness, Goldstein said "the record makes clear that section four was not intended as a means of removing the president simply because he or she makes an unpopular decision."

So did Schiff’s claim that the authors intended to cover physical incapacitation, serious mental illness and a general an inability to function, hit the mark?

"I think he’s right, as far as a one-sentence summary could have it," said Brian Kalt, a law professor at Michigan State University. "They made the process and the terms flexible, but that was what they were mainly thinking of."

Schiff said, "I think what the authors of the (25th) Amendment principally had in mind was some kind of physical incapacitation or serious mental illness or a breakdown, an inability to function in office."

The framers used deliberately broad language to allow for flexibility. But the record clearly shows they intended section four of the 25th Amendment to apply when a president is "unable to discharge the powers and duties of his office" due to either physical or mental inability, and not principally as a strategy for ousting an unpopular president.

We rate Schiff’s statement True.

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2017-08-29 17:21:18 UTC

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"I think what the authors of the (25th) Amendment principally had in mind was some kind of physical incapacitation or serious mental illness or a breakdown, an inability to function in office."

Adam Schiff

U.S. Rep, D-Calif.

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Sunday, August 20, 2017

2017-08-20

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